What Does Marijuana Justice Actually Look Like

Photo Credit: Chris Pizzello

Attorney General Jeff Sessions threw the legal and medical marijuana industry into somewhat of tailspin when he announced last week that he was rescinding an Obama-era policy that relaxed enforcement of federal prohibition laws. Since then, stocks in publicly traded marijuana companies plummeted, banks have gotten sweaty over financing such companies, and now the threat of jail time looms over marijuana growers, distributors, retailers, and shoppers in the states that have lifted the prohibition. The best hope for cannabis consumers and connoisseurs now lies with Congress, which could remove all headaches and uncertainty with a blanket repeal of the prohibition. There’s at least one senator, Cory Booker, willing to do that.

The Marijuana Justice Act, which Booker introduced last August, goes above and beyond mere legalization. It seeks to correct the past harms inflicted by the federal War on Drugs on black and Latino communities through a fusillade of stops, frisks, arrests, and mass incarceration over the past few decades. It deletes marijuana from the Controlled Substances Act list, which determines how drugs should be classified and penalized for law enforcement purposes. Most prior bills have only sought to reschedule marijuana to a lesser-penalized category. But that’s nowhere near the height of ambitions of Booker’s bill.

It would also make the Attorney General identify states that post disproportionate marijuana-related arrest and incarceration rates for people of color and low incomes, and then reduce federal funding for jails and police in those states. The money saved from those reductions would be rerouted to a “Community Reinvestment Fund,” which the HUD Secretary would then have to grant out to communities that have been devastated by draconian drug laws, for programs such as rehab and worker training. (This might literally drive Sessions and Ben Carson into medical conditions that can be best treated with marijuana.)

Finally, the Marijuana Justice Act would expunge marijuana-related convictions and grant civilians a private right to sue if they were a victim of the war on drugs’ harsh punishments. The bill is, indeed, ambitious, but no more so than the federal government’s thinking that it could arrest its way into zeroing out weed consumption. The bill also relieves the pain of many mayors and governors who have struggled with the fact that weed arrests have helped drive up jail costs and undermined ideas about how to draw much-needed revenue for underfunded necessities, such as healthcare. It not only removes all uncertainties about how to police weed, by eliminating the question altogether, but it also financially incentivizes cities and states to clamp down on racially biased policing—just in case any jurisdiction wants to keep criminalizing marijuana despite federal approval.

Yet, as high-reaching as the bill is, the Harvard Law Review says that it doesn’t reach far enough. A January 10 article from the journal analyzing the bill’s impact says that what the Marijuana Justice Act is missing is a racially equitable framework for how legalized marijuana should be regulated. Reads the article:

Without a reparatory regulatory framework, the Act is missing an important opportunity to remediate further the harms of marijuana prohibition. In failing to account for the money that will be generated by the legal marijuana markets, Senator Booker leaves behind a key tool in accomplishing his proposal’s goals of bridging racial and economic inequality. Current markets in the states that have legalized marijuana teach us that without state intervention, the black and Latino victims of marijuana prohibition are unlikely to benefit from the wealth attendant to the newly permissive environments.

Booker’s bill says what should be done with the money diverted from drug law enforcement, but doesn’t say much about what to do with the profits from the legalized marijuana market. Perhaps that’s something Booker entrusts to cities and states to figure out, as some already are. But the Harvard Law Review doesn’t agree with that kind of localized discretion, and perhaps for good reason: In Maryland, where medical marijuana became available last year, not one of the applicants approved in the first round of permits was an African American.

Instead, the Harvard Law Review recommends that the bill include language that directs cities and states to prioritize those people who’ve suffered from past arrests and incarceration from the criminalization of marijuana to get first dibs on permits and licenses for growing, distributing, and selling it. This is the approach that California has taken with its new law that legalizes marijuana for recreational use, which goes into effect this year. The Economist calls California’s Proposition 64 a “comically progressive” law, but the city of Oakland is already an early adopter of this racial equity framework.

But the Harvard Law Review says that Booker’s bill should reach even farther to achieve marijuana justice, by requiring that some portion of the tax revenue from legal marijuana sales be returned to those people whose lives were compromised—unable to get housing, jobs, professional licenses, or financial aid—due to past arrests and imprisonment for drug law violations.

“This compensation could take the form of a direct cash transfer upon verification that a person was convicted of a marijuana offense in the United States, and could be funded by a tax on marijuana sales,” reads the article. That is a flat-out demand for reparations for those harmed by the criminal justice system.

So far, Booker’s bill has only been able to attract one sponsor, Ron Wyden, the senator from the weed-friendly state of Oregon. Wyden has also introduced his own “Path to Marijuana Reform” bill package along with Congressman Earl Blumenauer, also from Oregon. That bill does have language on how to regulate and tax marijuana sales, but it does not provide a racial equity framework for that revenue. It’s hard to imagine that either bill would attract a critical mass of sponsors from this sitting Congress if they went as far as what Harvard Law Review calls for. But what’s important is that both Booker’s bill and the Harvard Law Review are expanding the conversation around legalization such that it’s not just about dismantling the War on Drugs or correcting Sessions’ backward actions. They also dare to imagine what actual racial justice looks like.